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May products be marked with national symbols?

Polish national symbols, such as the coat of arms (a white eagle with a golden crown on a red background), the red and white flag, and the national anthem (Dąbrowski’s Mazurka), enjoy special legal protection.

Fairly recently, the rules involving use of national symbols in commerce were liberalised. Currently the Act on the Arms, Flag and Anthem of the Republic of Poland allows a national symbol to be placed on a product so long as it is presented in a stylised or artistically altered form.

There is a major restriction, however, when it comes to use of trademarks containing the image of national symbols. As a rule, registration will be refused.

The Supreme Administrative Court issued a judgment on 21 April 2010 (Case No. II GSK 555/09) holding that registration of a trademark may be refused not only if the mark is identical to a national symbol, but also if it is similar.

The case involved an attempt to register a trademark on the part of a social organisation known as the Free Professional Union of Drivers (WZZK). In the centre of the trademark was an image of a white and red eagle with a golden crown. The image differed from the Polish state arms only in colour, as the eagle in the mark was red and white instead of only white. In its justification for the ruling, the court stated that the mark’s similarity to the arms may suggest that the organisation is a state-affiliated institution, even though the trademark also contained other elements that did not allude to national symbols.

The recent Polish judgment is in line with the judgment issued recently by the European Court of Justice in American Clothing Associates BV (joined cases C-202/08 P and C-208/08 P, 16 July 2009), which involved an attempt to register a trademark that included the Canadian maple leaf. There the ECJ held that state emblems cannot be registered as trademarks because they may cause confusion surrounding affiliations between the trademark holder and the state institutions whose emblem is used in the mark. The ECJ stressed that national symbols enjoy broad protection, which extends not only to direct copies of a symbol, but also imitations.

National symbols, particularly the arms and the colours, are used quite frequently in trade, primarily on souvenir items. This is often done in violation of legal restrictions. Under the judgments discussed above preventing registration of national emblems in trademarks, the question remains whether they should be allowed to be used on goods in stylised form. So far there is no well-established line of precedent on this issue.